Shelton v. Harris

George Rose Smith, J. This is an appeal from a probate court order holding that the appellant’s claim against the estate of Ella Hampton, deceased, is barred by the three-year statute of limitations, which applies to oral contracts. Ark. Stats. 1947, § 37-206. It is contended by the appellant that the case is governed by the five-year statute, applicable to written contracts. Ark. Stats., § 37-209. Early in 1949 the appellant lent $405 to Ella Hampton upon the borrower’s oral promise to repay the money in the fall of that year. Ella Hampton died, without having repaid the debt, on December 16, 1952, which was more than three years after the last day of fall (November 30), 1949. After the appellee’s appointment in 1954 as administrator of the decedent’s estate the appellant filed her claim for $405 and accrued interest. The claim and its supporting affidavit refer only to the oral loan agreement between the parties. Upon the face of the pleadings the trial court was undoubtedly correct in applying the three-year statute. In the course of the trial, however, the appellant testified that Ella Hampton, as security for the loan, had endorsed and pledged an overdue rent note for $450 that had been executed by Steve Hellems as maker to Ella as payee. This note was received in evidence without objection. It is now suggested that the appellant’s claim was thereby converted to a demand upon a written contract or that the court should have treated the original claim as having been amended to conform to the proof. Neither suggestion is sound. Ella Hampton was liable during her lifetime upon two separate contracts — the oral agreement to repay the $405 loan and the written endorsement of the $450 note. The appellant, entitled to but one satisfaction, elected to base her claim upon the oral obligation. Her proof is directed to that issue rather than to the materially different facts that would be needed to establish Ella Hampton’s secondary liability as the endorser of Steve Hellems’ note. The note was properly admitted in evidence, as it tended to corroborate the appellant’s assertion that she had lent money to the decedent. But it is plain that the borrower’s act of endorsing a past-dne note for $450 did not have the effect of reducing to writing her oral promise to repay a smaller sum in the fall of the year. Nor, for at least two reasons, would the court have been justified in treating the claim as having been amended by the proof. In the first place, the amendment would have asserted a new cause of action, upon a different contract. "We have held that it is reversible error for the trial court to permit such an amendment even when it is requested to do so. Patrick v. Whitely, 75 Ark. 465, 87 S. W. 1179. There would be still less justification for the court’s commission of the same error upon its own motion. Second, it is essential that a claim against an estate be supported by an affidavit in statutory form. Belatively slight deviations from the statutory language have been held fatal to the validity of the claim. Superior Oil & Gas Co. v. Sudbury, 146 Ark. 319, 225 S. W. 609; Rinehart v. Wheeler, 168 Ark. 251, 270 S. W. 537. The mere introduction of the Hellems note in evidence did not and could not bring into existence the affidavit that is vital to the assertion of a claim upon that note. Whether the probate court could, without infringing upon the doctrine of election of remedies, have permitted the appellant to withdraw her claim and substitute a demand founded upon the Hellems note, is a question not presented by this record. It is enough to say that the principle of treating the pleadings as amended by the proof cannot supply the mandatory requirement that a claim upon a written instrument be supported by proper verification. Affirmed. Holt, J., dissents.